When does a picture of a naked
child become 'child pornography'? Would the
description of a sexual encounter between an adult
and a child constitute child-porn, or does the
definition only extend to pictures? Does
pornography lead to sex crimes?
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Ageing rock star Pete Townshend
was recently released on bail after he admitted
accessing child pornography websites. Townshend
had issued an emotional statement the previous
weekend. He admitted visiting such sites, but said
that he had done so for legitimate reasons.
Meanwhile, the police operation code-named 'Ore'
is said to involve around 7000 UK suspects, and to
include policemen, former Labour ministers,
magistrates and even a judge (1). Common sense
would suggest that committing rape is much more
serious than looking at a picture. But it seems
that the law is beginning to equate criminal
responsibility for the two. The logical
consequence of this situation is 'thought crime',
where a person is penalised for what he may have
been thinking when viewing an image, regardless of
whether he has caused actual harm to a child.
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Furthermore, it is admitted that
the evidence as to child pornography, and its
prevalence on the internet, is patchy. Much of the
hard core child pornography to be found on the
internet was not produced recently, but dates back
several decades. To hold viewers of such
pornography as somehow complicit in the abuse of
children is a legal absurdity.
The law on
child pornography
The UK law
on child pornography is becoming increasingly
punitive. Under section 1(1) of the 1978
Protection of Children Act, it is an offence for a
person to:
'(a) take,
or permit to be taken, or to make any indecent
photograph or pseudo-photograph of a child; or
(b)
distribute or show such indecent photographs or
pseudo-photographs; or
(c) have
in his possession such indecent photographs or
pseudo-photographs, with a view to their being
distributed or shown by himself or others; or
(d)
publish or cause to be published any advertisement
likely to be understood as conveying that the
advertiser distributes or shows such indecent
photographs or pseudo-photographs, or intends to
do so.'
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The term 'pseudo-photograph' is
used in the Protection of Children Act 1978, as
amended by the Criminal Justice and Public Order
Act 1994, and in section 160 of the Criminal
Justice Act 1988, to include images made or
manipulated by computer which are not technically
photographs. It is possible, for example, to
produce a 'pseudo-photograph' by 'morphing' a
picture of adults to make them look like
children.
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The offence of possessing
an indecent photograph or pseudo-photograph of a
child is a criminal offence under section 160(1)
of the Criminal Justice Act 1988. The maximum
penalty was six months' imprisonment from a
magistrates' court. Section 41(3) of the Criminal
Justice and Court Services Act 2000 has now made
the offence triable either before a magistrate or
before a jury in a Crown Court, with a maximum
penalty of five years' imprisonment (on
indictment). This applies to offences committed on
or after 11 January 2001, when section 41 came
into force.
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The maximum penalty for all the
offences under section 1 of the 1978 Act was
originally three years on indictment. But this was
increased to 10 years by section 41(1) of the
Criminal Justice and Court Services Act 2000.
Again, the increased penalty applies to offences
committed on or after 11 January 2001.
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The Home Office's Sentencing
Advisory Panel recently undertook a consultation
exercise on sentencing guidelines for judges in
child pornography cases. The panel favours a 'get
tough' approach. Its approach, however, suggests
that the panel is influenced by political
correctness and individual opinion rather than by
a more scientific, evidence-based approach.
The lack of
evidence
The Home
Office's Sentencing Advisory Panel admits that it
is impossible to assess the prevalence of child
pornography offences with any degree of accuracy.
It immediately goes on to opine that the cases
coming to court are 'the tip of the iceberg'. This
is speculation: even those who specialise in
researching child pornography confess that they
know little about it.
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The panel referred to the COPINE
project (Combating Paedophile Information Networks
in Europe) at the University of Cork. This has a
reference database of more than 80,000 still
pictures and a large number of video sequences,
including examples of most of the material
publicly available on the internet (2).
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Max Taylor, professor of applied
psychology and director of the COPINE Project,
presented a paper to the Second World Congress
Against Commercial Sexual Exploitation of Children
in December 2001, entitled Challenges and
Gaps. He acknowledged that: 'we have little
understanding of the individual and collective
processes that give rise to the production and
distribution of child pornography in general, and
on the internet in particular. Indeed, given the
amount of legislative attention these issues have
attracted, it is difficult to find another area of
substantial policy development that has been based
on such little empirical evidence.' (3)
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Taylor pointed out that the work
done by COPINE suggested that, while collecting
child pornography on the internet may be primarily
related to sexual fantasy, it may also draw on
other factors related to collecting, social
facilitation and risk-taking. Among other factors,
he notes that relatively few child victims have
been identified.
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Child pornography covers a wide
range of images and ages. Some is clearly
repulsive. But given the lack of 'empirical
evidence' about it to which Taylor refers, we
should surely question the assumptions upon which
the highly punitive character of UK law regarding
child pornography is now based: namely, that it is
a prevalent problem, that its users are
necessarily paedophiles, and that children are
harmed in its production, or as a result of its
production.
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Back in 1999, Max Taylor presented
a paper entitled 'The nature and dimensions of
child pornography on the internet' to an
international conference on combating child
pornography on the internet in Vienna. He made the
following points:
-- Much of
the core of the sexually explicit child
pornography currently available on the internet is
30 or 40 years old, and even older;
-- Of the
internet material to which his project had access,
an estimated 85 to 90 percent was older than 10 to
15 years, with a large amount of that dating from
the 1960s and 70s;
-- 'The
relationship between adult sexual interest in
children and child pornography is complex and
poorly understood. Not all convicted child-sex
offenders express an interest in child
pornography. On the other hand, very many people
who have no criminal record, and who seemingly
have no known sexual interest in children,
demonstrate an interest in child pornography by
accessing and downloading images.'
-- 'The
relationship between collecting child pornography
and sexual assaults on children is also not
clear.' (4).
The
Sentencing Advisory Panel did not quote Taylor's
carefully balanced observations. Instead it stated
in its consultation exercise: 'It is said that
paedophiles use pornography in order to reinforce
and justify their will to abuse. In some cases,
pornography is shown to children to encourage them
to think of sexual activity as normal.' (5) But it
produced no evidence to back up this assertion
which implicates pornography in
general.
Controversial
sources
The only
source offered for its argument was an interview
with one Ray Wyre in 1990, conducted by Catherine
Itzin, who was editor and co-author of a book
entitled Pornography:
Women, Violence and Civil Liberties (6), an
attack on the pornography industry. Wyre worked in
the navy and studied at a Baptist bible college to
become a minister before choosing probation work
instead. Later, he ran a clinic for sex offenders.
He is a qualified social worker. In 1988, he
provided social workers in Nottingham, who
approached him for advice about witchcraft, with a
list of 'indicators' of satanic abuse. Social
workers used these indicators to identify a local
family as satanic abusers.
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In what became a national scandal,
it was subsequently revealed that satanic abuse
was non-existent in this case or any other case
where it was suspected, and the list was rapidly
debunked (7).
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Wyre's interview was about his own
beliefs. He asserted that 'men's fantasies are
fuelled by pornography. It gives them ideas, and
they act those ideas out'. He claimed that all
pornography was 'incredibly dangerous', that it
maintained 'a climate of misogyny', was a
causative factor in violence against women, and
'influenced the attitude of all men'. He regarded
all men as 'on a continuum of sexism in the same
way all white people are on a continuum of
racism'. He regarded emotional abuse as sexual
abuse. And he mentioned a boy who, he says, was
abused 'within a satanic cult'. The pornography
which Wyre mentioned being used as seduction aids
by people seeking sex with minors was 'ordinary
"soft" pornography', '"ordinary" heterosexual
pornography', and 'gay literature' (8).
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As Nadine Strossen, president of
the American Civil Liberties Union, says, the idea
that porn leads to sex crime presupposes a
particularly degraded view of humanity and the
capacity to make choices, which appeals to
anti-pornography feminists (9). Among Itzin's
other contributors were journalist Tim Tate,
author of a controversial book called Children for
the Devil: Ritual Abuse and Satanic Crime
(10), and Catharine MacKinnon and Andrea Dworkin,
for whom pornography is hate speech, sex
discrimination and sexual abuse.
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MacKinnon argues that women cannot
consent to sex anyway, because of male domination.
She and Dworkin see heterosexual sex as degrading.
Both campaigned unsuccessfully for civil laws to
allow victims of sexual assaults to sue producers
of porn, even Playboy.
Itzin mechanically repeats their dystopian
argument that until porn is eliminated, women
never can be free (11). As a source used by the
Home Office's Sentencing Advisory Panel, then,
Itzin's book seems an embarrassing choice.
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Camille Paglia has excoriated the
MacKinnon-Dworkin view of pornography as
preposterous, not least because rape and violence
against women predate modern Western pornography
by millennia. Paglia scorns the deficiencies in
MacKinnon-Dworkin's approach:
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'MacKinnon begins every argument
from big, flawed premises such as "male supremacy"
and "misogyny" while Dworkin spouts glib Auschwitz
metaphors at the drop of a bra. Here's one of
their typical maxims: "The pornographers rank with
Nazis and Klansmen in promoting hatred and
violence." Anyone who could write such a sentence
knows nothing about pornography or
Nazism.' (12)
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Paglia's concerns are shared by
Judge Richard Posner of the US Court of Appeals
(seventh circuit), who says that Mackinnon is
obsessed by pornography (13). Despite Paglia's
protests, the confused assumption that porn equals
rape has become increasingly mainstream.
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No law-abiding person condones
children being raped or abused, on camera or off
it. Clearly, in situations where children are
sexually assaulted and the assaults are recorded,
the photo or film is a record of criminal acts.
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But it is misconceived to argue
that the record 'is' the abuse. It is neutral.
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It is bizarre to argue that
someone who downloads and views a picture of an
assault later on - perhaps 40 years later - is
somehow complicit in the original assault. This
makes no sense. We do not say that someone
watching the destruction of the World Trade Center
on TV is complicit in the hijackers' acts. Even if
that person believed that the Americans got what
they deserved and cheered, he could not incur
criminal liability for the crimes perpetrated on
9/11.
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It is also absurd to argue, as
some now do, that sexual victimisation of children
is involved, regardless of what the picture
actually shows (say, a toddler in a paddling pool
or the bath, with no clothes on), or the context
in which it was taken, or whether it even shows a
real child (14).
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Yet these fallacies have filtered
into official policy. Of course, actual sexual
abuse of children inspires particular revulsion.
But it looks as though people who possess images
of such abuse - or computer-generated scenarios,
which do not display anything 'real' - must now
carry the can for those who commit actual offences
against children.
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This scapegoating also involves
the notion of 'thought crime'. People are
penalised for what they might be thinking when
they view an image, regardless of whether they
played any role at all in the actual abuse of
children.
Equating
images with abuse
The
Sentencing Advisory Panel has given the Court of
Appeal the following advice on sentencing: 'Every
indecent photograph or pseudo-photograph of a
child is, with limited exceptions, an image of a
child being abused or exploited.' It says that
adults 'can' suffer shame and distress knowing
that indecent images of them as children are still
in circulation (15).
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And it goes on: 'An offender
sentenced for possession
of child pornography should be treated as being in
some degree complicit in the original abuse which
was involved in the making of the images.
Sentences for possession should also reflect the
continuing damage which is done to the victim or
victims, through copying and dissemination of the
pornographic images.' (16) (Note how the
possibility of ongoing damage has become a
certainty.)
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COPINE developed a typology of
images of children, with categories ranging from
the relatively least problematic (for example: 2,
Nudist (naked or semi-naked in legitimate
settings/sources), and 3, Erotica (surreptitious
photographs showing underwear/nakedness), to 9,
Gross assault (penetrative assault involving
adult) to 10, Sadistic/bestiality (sexual images
involving pain or animal).
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The Sentencing Panel rejected this
typology, and has created its own for sentencing
purposes 'according to the degree of harm to the
victims' (17). But it may be unclear just who the
'victims' are, and the harm involved will
frequently be a matter of speculation.
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Furthermore, the panel states:
'Images in COPINE categories 2 to 3 might be the
subject of a dispute as to whether or not they
were indecent. We have included them at level 1 of
our scheme because there may be cases where an
offender has been convicted, or pleaded guilty,
solely on the basis of images of this nature.'
Level 1 of the panel's scheme relates to 'Images
depicting nudity or erotic posing, with no sexual
activity'.
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The panel's assumption that
'Images depicting nudity or erotic posing, with no
sexual activity' and 'Nudist [pictures] (naked or
semi-naked in legitimate settings/sources)' can be
criminal was considered by the Court of Appeal in
November 2002. The court disagreed that nudity in
a legitimate setting, or surreptitious photos of
underwear, were pornographic. But it agreed that
'erotic posing' was. What is an erotic pose?
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Donatello's 'David' would probably
fall foul of the new sentencing criteria while
Bronzino's 'Allegory of Venus with Cupid'
certainly would. People like Lewis Carroll and
Baron Wilhelm von Gloeden took nude photographs of
girl-children, and boy-teens, in the nineteenth
century. If downloaded from the internet, it seems
that they too could still be suspect.
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It seems illogical that possession
of such images downloaded from a computer should
constitute a crime, while possession of a
coffee-table artbook is not.
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The current scare over child
pornography, then, has two perverse consequences:
ultimately, its chilling effect requires the
censorship of just about everything; and its
repressive measures fuel interest in the very
thing that it seeks to suppress.
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Barbara
Hewson is a barrister at Hardwicke
Civil
Who's got a
dirty mind?
(1) 'A
"paedophile" witch-hunt?' Independent,
17January 2002; 'Paedophiles: The Police Hunt' Independent on
Sunday, 19 January 2002
(2)
Sentencing Advisory Panel, "Sentencing of Offences
Involving Child Pornography: Consultation Paper"
January 2002, paras. 31, 37. See also paras. 32,
36, 41
(3) See
the COPINE
Project website
(4) See
the COPINE
Project website, 'Published Material'
(5)
Sentencing Advisory Panel, Consultation Paper,
para. 29, n.3. Wyre is on the statutory list of
consultees whom the Panel must consult, by the
Lord Chancellor's direction under section 81(4)(a)
Crime and Disorder Act 1998. On Wyre's work, see
All Wyred
up Achilles Heel, Issue 13 Summer 1992. See
also Ray Wyre
Associates
(6) Pornography:
Women, Violence and Civil Liberties Catherine
Itzin (ed.) (OUP, 1992; reprinted 2001). Wyre's
interview is Chapter 14, 'Pornography and Sexual
Violence: Working with Sex Offenders'
(7) See Intimate
Enemies: Moral Panics in Contemporary Britain,
Philip Jenkins, (Aldine de Gruyter, 1992) pp. 85,
97, 158-61, 169-71, 179, 191-2; 'The Making of a
Satanic Myth' Rosie Waterhouse, Independent on
Sunday 12 August 1990. The Report by a Joint
Enquiry Team into the Nottingham débacle is here. And
see Child
Protection Questions by Jennie Bristow
(8) Pornography:
Women, Violence and Civil Liberties Catherine
Itzin (ed.) (OUP, 1992; reprinted 2001) p243-4,
236, 241, 244, 246
(9) Nadine
Strossen, Defending
Pornography (NYU, 2000), p146-7
(10) Children for
the Devil: Ritual Abuse and Satanic Crime,
London: Methuen, 1991. It was the subject of a
successful libel action by a policeman who
investigated the Nottingham case: see The Media and
the Myth
(11) "The
Child Pornography Industry: International Trade in
Child Sexual Abuse" Tim Tate, "Pornography, Civil
Rights and Speech" Catharine A MacKinnon, and
"Against the Male Flood: Censorship, Porngraphy
and Equality" Andrea Dworkin, in Pornography:
Women, Violence and Civil Liberties Catherine
Itzin (ed.) (OUP, 1992; reprinted 2001) chs11,
23-4; Feminism
Unmodified Catharine A MacKinnon (Harvard,
1987) chs6-8, 11-16; Towards a
Feminist Theory of the State Catharine A
MacKinnon (Harvard, 1989) chs7-12; Only Words
Catharine A MacKinnon (Harper Collins, 1994),
chapter 1, 3
(12) "The
Return of Carry Nation: Catharine MacKinnon and
Andrea Dworkin" Camille Paglia, in Vamps &
Tramps (Penguin, 1995) p110-1. And see Pornography in
a Free Society Gordon Hawkins & Franklin
E. Zimring, (Cambridge, 1988) ch 6
(13)
Quoted by Defending
Pornography Nadine Strossen, (NYU, 2000),
p141. And see Sex and
Reason Richard A Posner, (Harvard, 1992)
p131-2
(14)
'Typology of Paedophile Picture Collections',
Taylor M., Holland G. and Quayle E., The Police
Journal 2001 74(2) 97-107. See p 7-8 of this
paper on the COPINE
site
(15)
"Advice to the Court of Appeal - 10 Offences
Involving Child Pornography", Sentencing Advisory
Panel, August 2002, paras 10, 12. The Court of
Appeal issued guidelines based on the Panel's
advice in R
v Oliver and others on 21 November 2002
(16)
"Advice to the Court of Appeal - 10 Offences
Involving Child Pornography", Sentencing Advisory
Panel, August 2002, para 13
(17)
"Advice to the Court of Appeal - 10 Offences
Involving Child Pornography", Sentencing Advisory
Panel, August 2002, para 20, Table on page 5
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